Judges are skeptical Righthaven ever had standing to sue.

Righthaven was a copyright-enforcement business dreamed up by Las Vegas attorney Steve Gibson. He managed to convince the largest newspaper in Nevada, the Las Vegas Review-Journal, to let him use its copyrights to sue more than 200 mostly small-time bloggers and demand several thousand dollars apiece from them for reposting Review-Journal articles. Righthaven struck a similar deal with the Denver Post, which led to about 50 more lawsuits.

The plan went on for over a year. It included lawsuits against a cat blogger, a mildly autistic hobby blogger, and one Ars writer; but by mid-2011, Righthaven had been absolutely pounded in court. They lost a few cases on fair use grounds. Even more profoundly, Righthaven was found not to have standing to sue at all. The contract it struck with the Review-Journal didn't transfer the whole copyright, a judge found; it merely transferred a "bare right to sue," which is not allowable under a legal precedent called Silvers v. Sony Pictures.

There are second chances in life, though, and Righthaven got one yesterday. The company's new lawyer, Erik Syverson, argued that the US Court of Appeals for the 9th Circuit should overturn Righthaven's losses in two cases: the DiBiase case, defended by the Electronic Frontier Foundation, and the Hoehn case, defended by Las Vegas attorney Marc Randazza. Yesterday's case is the first Righthaven case to be argued at the appellate level.

Righthaven’s strategy is “too cute by a half”

Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

While one can't be 100 percent sure of the result of a case based on judges' comments, the questions in this case were very critical of Righthaven. It would be a real shocker if Righthaven was found to have standing to sue.

On fair use, a tougher argument

The Righthaven v. Hoehn case was actually won on two separate grounds: first, that Righthaven didn't have standing to sue, and second, that Hoehn's posting of the Review-Journal article was "fair use," even though he posted the entire piece. While the judges certainly seemed receptive to the idea that Righthaven never had standing, they didn't seem too friendly to the idea that Hoehn's use of the article was fair use.

Hoehn had posted an op-ed about public employee pensions to the forums in madjacksports.com. (The op-ed was written by former Review-Journal publisher Sherman Frederick, who once promised "copyright thieves" they would meet his "little friend called Righthaven.") A district court judge found that the reposting of the whole article was fair use, because it spurred discussion of an important public policy issue, and it didn't compete with the original product.

The appeals court seemed less receptive to that point of view during oral arguments yesterday. First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"

Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.

Randazza agreed that wouldn't be fair use. It would depend on the length and character of the work, said Marc Randazza, who argued the fair use portion of the appeal.

Overall, the judges didn't seem to favor the idea that Hoehn's posting of the full article, even in a comments section, might be fair use. But if Hoehn and DiBiase succeed on the standing issue—and it seems likely they will—fair use might not even come up. "If there's no standing, there's no standing," said Randazza, in a post-argument interview with Ars.

Hoehn won a $34,000 judgment against Righthaven, which still hasn't been paid and has ballooned to almost $200,000, said Randazza. Righthaven, and possibly Gibson and Stevens Media, are probably deeper in the hole than that. "I'm not the only one with a judgment against him," noted Randazza. Righthaven's trademark and website have already been auctioned off for a few thousand dollars each, said Randazza. Even the Righthaven "copyrights"—flawed assignments and all—have been sold, despite their dubious value.

"You'd be surprised," said Randazza. "Some people want to buy them just to own one of Righthaven's bogus copyrights, as 'legal memorabilia,' for want of a better way to describe it."

So why are Gibson and Righthaven still fighting at this point?

"It's a tantrum, and an attempt to salve his ego," said Randazza. "And I can almost respect that."

In any case, Gibson's reputation in the legal community has taken a serious hit. "I moved to Las Vegas and became instantly popular for being the guy who's smacked Steve Gibson around," said Randazza. "I go to bar functions and people high-five me for screwing with him. This guy staked what he had, as far as a reputation, on this scheme."

36 Reader Comments

"It's a tantrum, and an attempt to salve his ego," said Randazza. "And I can almost respect that."

I can't. Gibson thought he could bully people into paying a settlement by twisting the law and using the judicial system as intimidation. He did it solely for monetary gain, nothing else. He's a prick and should reap what he sows.

"It's a tantrum, and an attempt to salve his ego," said Randazza. "And I can almost respect that."

I can't. Gibson thought he could bully people into paying a settlement by twisting the law and using the judicial system as intimidation. He did it solely for monetary gain, nothing else. He's a prick and should reap what he sows.

To be fair, I think that quote was tongue-in-cheek. 'Almost' respecting someone implies that that don't respect someone.

Two Reagan and one Bush II appointees seem skeptical of Fair Use arguments? Forgive me if I don't find this shocking.

/cynic

(To be fair, I've always found O'Scannlain to write excellent, balanced opinions, when I've had opportunity to read them.)

According to the article the original article was posted in its entirety. Fair use, as I understand it, requires commenting on the original article which typically requires quotations from the article but normally not the entire article. Also, one can link to the original article but it is unclear if the blogger knew how to do this.

Without reading the blog it is hard to judge but I could see why one would be skeptical of Fair Use in this specific instance.

In reality the bigger issue is proper standing. The courts are finding Gibson does not have standing to sue on his own account.The actual copyright holders did not retain him as an attorney because they are not actually suing.

As I understand "standing" only the injured parties can sue and must be named as plaintiff (I am not a lawyer). For example if you injure someone in car accident the only people who can sue are the injured and possibly their immediate families - get the advice of lawyer about who exactly has standing. Unless I am one of the injured (or possibly have standing as immediate family) I do not have standing to sue you. My theoretical suit should be thrown out and depending the specifics I may have left myself open to a countersuit by you.

"It's a tantrum, and an attempt to salve his ego," said Randazza. "And I can almost respect that."

I think the unpaid judgements from people who beat Righthaven have more to do with it. They're at least a six figure albatross circling around all the people in the scheme; while a win on appeal won't transform their name into something other than mud voiding the judgements would not only drive away the debt collectors but allow them to resume their extortion racket.

The irony is subtle, but great. If the Las Vegas Journal had just outright assigned their copyright to Rightshaven there would be no question of standing. And we're talking about the copyright on news articles. What monetary value do a handful of news articles really have two months after publishing? A week later, most news stories are forgotten. This whole process was based on this mentality that the value of each of these articles was huge, if just not for that darn internet, and in the end that inflated self-worth caused the whole operation to self-destruct when they couldn't even bring themselves to give up exclusive copyright of a couple old news stories.

I disagree wholeheartedly with the argument that quoting an entire article can't be fair use. I have and continue to do that pretty regularly, but only when articles I quote (a local blog, quoting local newspapers) have the meat of the topic, usually false and erroneous political claims made by local politicians, so interwoven with the entire article that parsing each article into the fifteen or twenty (or more) separate claims and rebuttals would be a ridiculous waste of time. In those cases, I quote the entire article and then post my own responses as a list or footnotes to tags in the article.Starting in 2010, these local politicians got wise and started using local radio shows to air their political nonsense, then when critics used local blogs to criticize them and to rebut their claims and accusations, they responded by denying they made any such statements. Now bloggers, myself most of all, have started archiving bits and pieces of these broadcasts for public comment and critique. Now the legal beagles are on the case and I have been threatened numerous times that several law firms are "looking into" shutting my sites down for violation of copyright. While they are working on removing any trace of their broadcast or printed statements, these bureaucrats and politicians are claiming that, since I don't provide complete copies of news articles, their radio shows or interviews, no one can be sure its them speaking or being interviewed.I'm still waiting for a C&D to show up at the door, but since 2003, no one has actually done it.

According to the article the original article was posted in its entirety. Fair use, as I understand it, requires commenting on the original article which typically requires quotations from the article but normally not the entire article. Also, one can link to the original article but it is unclear if the blogger knew how to do this.

Without reading the blog it is hard to judge but I could see why one would be skeptical of Fair Use in this specific instance.

There aren't requirements under the fair-use guidelines because they're merely guidelines. There's no hard set way, short of a judge's ruling, to exactly pin which use is fair use and which is an infringement.

In each use of copyrighted material, the user has to determine whether the use fits within the four statutory guidelines provided under fair use. There are factors that strengthen a fair-use argument (like limited, transformative use; citing the source; etc.) and there are those that weaken a claim (using large portions of the work, commercial use, etc.). Even then, they face the risk of being sued for copyright infringement and having to justify their use in court.

However, what you said is generally what's been considered an example of acceptable fair use — quoting or citing limited portions of a copyrighted work for fair comment or criticism. Otherwise it would be very difficult to review the latest books, TV shows, etc. or discuss current events with any sort of context.

As someone who writes for a living (and occasionally finds the need to use material under fair use), I found it disconcerting that a district court ruled that reposting an entire article could sometimes be considered fair use. I don't argue that there may be some situations where it might be, but it just seemed overly broad considering all the websites that rip off whole articles and contribute nothing in the form of additional comment or criticism.

With that all said, I've never agreed with the Righthaven model, which seemed like aggressive overkill in search of a payday. Whenever I encounter copyright infringement of specific work, I usually contact the site in question and inform them of my concerns. Out of a sake of fairness, I also provide them with what I know about the fair-use guidelines (adding that reposting an entire article might not be construed as fair use and we would prefer attribution and maybe a link).

In nearly all cases, the people we contact acquise with our request. If there was a repeat offender reposting entire articles, we might consider a DMCA takedown request if it was appropriate. Even then, DMCA calls for two takedown notices (and counter-notices) before considering legal action.

I am by no means a fan of Rightshaven or their extortion attempts, but I could get on board with the idea that copying a full article in full and posting it somewhere else isn't exactly fair use. If there were specific parts of the article you want to call out and maybe comment on, then move onto another section and comment, etc I think this falls under fair use. I couldn't tell, but did they at least link back to the original or indicate where the article originally came from and the author?

Even if it was determined not to be fair use, if I were on a jury I would have a hard time convicting this person. It was probably out of shear laziness he just copied the whole thing. And you would have a hard time convincing me that there was any real damage caused here (if it was taken from behind a pay wall and re-posted maybe then I would start to think a little differently). But in the end, I don't think anyone was harmed and any fine of more than a few hundred bucks would seem excessive. Our legal system is so complicated you have to be a legal professional to understand all your rights and what you are allowed and not allowed to do. I probably break some law everyday and don't know it. I'm not saying ignorance is a defend-able excuse, but there is just no way to know sometimes. And most people are not aware of copyright law. Not everyone is reading Ars all the time (although I wish they would).

I feel compelled to point out that there is no hard boundary on how much-- or how little-- of a work is available for fair use purposes, regardless of transformation.

While it would seem absurd to claim copying of an entire, multi-hundred page book for the purpose of commentary or stimulating debate, would it also be absurd to copy the entirety of a work that is itself only a few hundred characters long?

Because each work is different, and each use is different, there can be no hard definition of fair use-- not if it is to truly be fair. This is why the determination is ultimately left to the court.

One thing I'd like to add about our blogging situation in this rural area. The only radio station, TV station and newspaper were all, until four or five years ago, owned by the same family. Whatever wasn't covered by one wasn't covered by the other two. That was especially troublesome when it came to politics and local government. The TV station was sold to a shill corp, but the previous owners sent the newspaper editor to head the station's assignments, who picks and chooses what is broadcast and what isn't, so the newspaper and the station still mirror each others politics.What is troubling to local bloggers is when local officials give exclusive interviews to the TV station or the newspaper and, if a citizen misses a public broadcast, there is no access to the broadcast wherein an official discusses official policy, plans, local regulations, etc.Likewise when local officials grant exclusive interviews to the newspaper. The interviews are hidden behind a paywall, in an area where many people can't afford the luxury of internet, online subscriptions, etc. Not even the local library, where internet access and computers are a valued community resource, is granted free access to the articles.So yes, when the newspaper conducts an interview with a local government official, where the interview is about official policies, plans, actions by the council, talk about boards and decisions made, where the interviewer includes (usually, at most) a single paragraph at the start and ending of the interview, I have no regrets about quoting the entire content of the article (most of the time, I will remove the starting and ending commentary). Some might disagree with that, but I grew up in the 50s, when the government could do just about anything, to anyone and hide anything it wanted. I see a troubling movement to go back to that mentality.I also have no regrets doing the same with radio and television interviews with public officials, again, who discuss public policy that affects the public. All my material is provided to the public free of charge, without ads or commercial revenue, and with links and citations when available. Most of my readers can't afford paywall prices to see what the mayor or their council member told the newspaper about their taxes or a change in city ordinances. That information needs to be, it should be public and I really don't care who tries to take me down for it. Like any other activist, I know what they have threatened to do and I know what they'd like to do, but I'll take that hit because it's something I think needs to be changed.

I feel compelled to point out that there is no hard boundary on how much-- or how little-- of a work is available for fair use purposes, regardless of transformation.

While it would seem absurd to claim copying of an entire, multi-hundred page book for the purpose of commentary or stimulating debate, would it also be absurd to copy the entirety of a work that is itself only a few hundred characters long?

Because each work is different, and each use is different, there can be no hard definition of fair use-- not if it is to truly be fair. This is why the determination is ultimately left to the court.

I think the Fair Use issue is secondary in this case because the courts ruled Righthaven does not have standing. Thus their suit can be rejected without an analysis of or ruling on the actual issues raised. If the actual copyright holders were to sue then the Fair Use claims become important. The standing issue is there an injury against the plaintiff by the defendant. Righthaven does not own the copyrights so they could be injured by copyright infringement.

Since Righthaven does not have standing to sue could Gibson face suits, criminal charges, or disbarment?

Two Reagan and one Bush II appointees seem skeptical of Fair Use arguments? Forgive me if I don't find this shocking.

/cynic

(To be fair, I've always found O'Scannlain to write excellent, balanced opinions, when I've had opportunity to read them.)

According to the article the original article was posted in its entirety. Fair use, as I understand it, requires commenting on the original article which typically requires quotations from the article but normally not the entire article. Also, one can link to the original article but it is unclear if the blogger knew how to do this.

Without reading the blog it is hard to judge but I could see why one would be skeptical of Fair Use in this specific instance.

In reality the bigger issue is proper standing. The courts are finding Gibson does not have standing to sue on his own account.The actual copyright holders did not retain him as an attorney because they are not actually suing.

As I understand "standing" only the injured parties can sue and must be named as plaintiff (I am not a lawyer). For example if you injure someone in car accident the only people who can sue are the injured and possibly their immediate families - get the advice of lawyer about who exactly has standing. Unless I am one of the injured (or possibly have standing as immediate family) I do not have standing to sue you. My theoretical suit should be thrown out and depending the specifics I may have left myself open to a countersuit by you.

Not attempting to pick nits, but for standing, I'd imagine you might be able to argue a case for peripherial damages depending on the "injury" claimed.

I am not saying you CAN, I am more asking if it would be possible to.

For instance I run a marketing company and my employee gets in to a car accident and the other driver was at fault. As a result of that car accident my employee missed a big sales pitch and our company lost a contract. I would wonder if it would be possible to sue the at fault driver?

According to the article the original article was posted in its entirety. Fair use, as I understand it, requires commenting on the original article which typically requires quotations from the article but normally not the entire article. Also, one can link to the original article but it is unclear if the blogger knew how to do this.

Without reading the blog it is hard to judge but I could see why one would be skeptical of Fair Use in this specific instance.

The issue I take with this stance (along with the stance related in the article from the judges) is that Fair Use can be determined by a four point system and you--and the judges--are focusing in on primarily one and secondarily another of the four points. Length of work used along with if the work is used in a transformative manner are but half the potential Fair Use determining factors. There's also the monetary profit of using said works and the potential use for educational purposes (hence teachers not getting sued for copyright infringement when they show movies in classes or the like). Now, while it may be a stretch to have the work covered as being educational in use in its entirety in a comments section, it is still--as the previous judge ruled--stimulating conversation amongst the forum attendees. That is somewhat educational in nature, so that would be a grey point of the four factors. However, it's pretty clear from what I've followed of the case that the poster did not profit from the use of the work, and that really helps a Fair Use argument.

I think this case really helps to illustrate why we need better Fair Use rulings and more solid guide lines for what will constitute Fair Use. If one judge is able to look at the use of a work and deem it Fair Use, and another set of judges (or just one other judge) looks at the same use and presumably goes by the same guide lines and deems it not Fair Use, then it seems like either the judges are working off different agendas, or the guide lines themselves are not useful enough. Neither of those outcomes benefit the public at large, nor help bolster confidence with artists to create useful art if there is no clear indication if their works will be protected under Fair Use.

Hopefully that particular appeal will be dismissed off grounds that Righthaven was not in proper standing to sue in the first place and the Fair Use issue will not come up at all. We really have enough troubles with Fair Use getting ruled to start having conflicting precedents set at this point.

I think for me, the crappiest part of all this is all the poor people that have already caved into the pressure from Righthaven to pay up and actually did shell out the cash. I'm sure they're out there.

If Righthaven's entire business model and legal footing has been summarily crushed in court, I would think those people would have a right to sue to get their money back. Problem is, of course, that Righthaven is financially defunct and they would never see a penny of it.

There is something I do not understanding here:I thought as a copyright holder I can delegate both power of attorney and hire someone to find and turn over cases to my attorney for lawsuits.I kind of thought that is how the music labels do this via the RIAA: They hire a company to find infringers and collect the evidence, and then the RIAA attorneys go at it…Is there any reason these two powers cannot be hired out to the same company?

There's no reason that a law firm could not have filed the suits on behalf of Stevens Media alleging infringement. But that's not what happened here, which is why the case was tossed. Righthaven and Stevens Media tried to set up a deal where Righthaven only owned the "right to sue" part of the copyright bundle that a copyright owner has as control over works. Righthaven claimed that they were were the copyright owners, but only insomuch as they could sue alleged infringers. They didn't have the right to print the articles themselves, distribute it, etc. under this scheme. But there is no such "right to sue" as part of the bundle of rights a copyright holder has, and as such the imaginary "right to sue" can't be transferred to a third party. You either hold the real and defined bundle of copyrights (reproduction, distribution, performance, etc.) or you don't. If you don't, you can't sue claiming that your rights have been infringed. If Righthaven had bought the real copyrights to the material in question they would have had standing to sue. If they had been used as an actual law firm and merely served as attorneys for Stevens Media, they would have been able to file and argue the suits on Stevens Media's behalf, like real lawyers. Instead they tried to invent a whole new right out of thin air and sue on behalf of themselves, sending a cut of the revenue back to Stevens Media. That scheme blew up in their faces and I personally hope everybody who thought they were just so clever in coming up with this sham will never be able to find work in court again.

I think they were mostly trying to avoid the anti-RIAA style backlash that these kinds of things tend to stir up. No publisher wants to be associated with that anymore, they don't want people to think they're greedy scumbags. It's understandable, that's just bad for business. Unfortunately, Righthaven and their news partners turned out to be even bigger scumbags than the RIAA. They sued non-profits, they sued people who get twenty pageviews per day, they sued the sources for some of the papers' own articles. They even tried to sue a freelance reporter for using one of the photocopies entered as evidence in one of their court cases; the photocopy was being used in an Ars Technica article that covered Righthaven's lawsuit against the Druge Report.

I think they were mostly trying to avoid the anti-RIAA style backlash that these kinds of things tend to stir up. No publisher wants to be associated with that anymore, they don't want people to think they're greedy scumbags. It's understandable, that's just bad for business.

The other reason to do things the way they did them was to separate out liability - if the scheme had succeeded, Stevens Media would have an upside (the royalty payments from Righthaven), but no liability or losses whenever Righthaven made a mistake.

As it is, the courts have affirmed that to sue over Stevens Media copyrights, Righthaven must either be acting on Stevens Media's instructions, making Stevens Media liable in full if they lost, or own enough of the copyright that if Righthaven lost, Stevens Media may have to hand over the copyright on the material being sued over to a potentially unfriendly third party - there's no way to get the upside of suing over copyright infringement without also having some downside if you lose.

I liked the picture. And the Lady Luck looked to me like a Las Vegas business venture that may have briefly looked promising but is now a dried-up husk.

Just for the record, and because Ars readers seem to take great joy in nit-picky-ness, I thought I would add the following:

The Lady Luck closed "for renovations" in 2006, has been sold a couple of times since, but the latest owner CIM Group is actually doing construction, and has said that the casino, now named the Downtown Grand, will open this year. Let's hope Right(Wrong)haven isn't so fortunate.

This is from Wikipedia, but it jibes with what I have read in the Review-Journal and personal observations (I live about 3 miles east of downtown LV).

OK, I know that the right in righthaven refers to copyright not right or wrong, but I did it anyway.